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Prejudice Standards in Washington’s Appellate Courts
Get PDFWhen an appellate court finds an error to have occurred during a proceeding, the error is not yet subject to correction. In order to merit a remedy, the error must have been sufficiently prejudicial to the aggrieved party’s case. Drawing the line between correctable and non-correctable errors is not an easy task, for it often requires guessing at what was in the minds of jurors and trial judges. To cope with this task, courts have devised various rules and tests for deciding whether an error was likely prejudicial or not. These standards often go by names such as “harmless error,” “clear error,” “structural error,” and other similar phrasings.
While courts across the common law tradition have used these standards for over 200 years, their study has been historically neglected. It is only in the last 50 or 60 years that courts and commentators have earnestly begun systematizing, rationalizing, and studying standards for reversal on appeal. The catalysts that brought critical attention to these standards were the United States Supreme Court’s 1967 opinion in Chapman v. California and Justice Roger Traynor’s resulting 1970 book The Riddle of Harmless Error. Since then, there has been tremendous growth in the study of prejudice standards. However, to date, this study has not yet reached Washington State.
The purpose of this Article is to bring Washington into this important and developing conversation. To that end, this Article surveys the prejudice standards used by Washington’s appellate courts. It discusses their history, their current usage, and areas where clarification is required.
Part I of this Article addresses the most common prejudice standard: harmless error. Part II addresses the constitutional harmless error standard. Part III concerns a unique subset of constitutional error—structural error. Finally, Part IV addresses the cumulative error doctrine
Student Life E-Newsletter September 23, 2024
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Student Life E-Newsletter September 16, 2024
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Student Life E-Newsletter October 21, 2024
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Student Life E-Newsletter November 04, 2024
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Student Life E-Newsletter November 18, 2024
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Public Primacy in Corporate Law
Get PDFThis Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and the public
The Limits of Corporate Governance
Get PDFWhat is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.
Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. Instead, as we argue in Part II, regulation is the best way to curb corporate misbehavior
Stakeholder Governance on the Ground (and in the Sky)
Get PDFProfessor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.
In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part of that involved my conversations with executives in the C-suite at Goldman Sachs and learning about their views of the role of delay in decision making, and I discovered that one of the most important people at Goldman, a kind of quiet “number two” executive, was John Rogers, a secret, silent, behindthe- scenes consigliere, whose eyes were on just about everything you can imagine at the company for a long time. In recent years, I’ve learned that American Airlines has a similarly extraordinary person in senior management, someone who is involved in virtually every important aspect of the business. Amelia Miazad met him while she was teaching at Berkeley and somehow persuaded him to become part of our academic community. It’s been a joy to get to know Steve and to have him teaching and involved in our scholarly efforts. Steve is the John Rogers of American Airlines.
Let’s start with Steve’s background. He is a Berkeley alum, both JD and MBA, from 1982. And although his title is simply executive vice president of American Airlines, he really is a quiet number two. Steve, obviously you’ve done many, many things during your career, but let’s go back to the beginning after you graduated and tell us about the parts of your background that would be particularly relevant to this audience.
Professor Stephen Johnson:Sure, sure. But before I start, I want to thank Dorothy and Chuck. Yesterday, one of Dorothy’s colleagues who isn’t here today, looked at my name tag and with a sort of suspicious, halfway sympathetic look in his eye, said, “you’re the only member of corporate America here today.” [Speaker and audience chuckle]. And that gave me a little pause, particularly for the Q&A. But it’s a real privilege and this has been an enriching couple of days that I’ll never forget. So, thank you very much for having me. And also, to you Frank, thanks for picking me as your side kick here.
After graduate school, I practiced law. I was a corporate and tax lawyer in the 1980s. Interestingly, in the 1980s there was a lot of overlap as the Reagan Administration used tax incentives to incentivize investment to jumpstart a moribund economy. In 1989, I went to work for my biggest client, a financial services company that caused me to move to Ireland, was a terrific highflyer, a really interesting place to work, and very international business. We got into financial trouble with the recession after the first Gulf War, but that turned out to be a huge career opportunity for me. The senior people at the company left, and I became general counsel, helped sort that all out, and we sold the company to GE Capital in ‘93. I worked for GE for about a year, didn’t like that, and that led me to me leave Ireland and move to Phoenix, where I became the general counsel of a little airline called America West Airlines. Way back when, some of you may remember it
A History of Corporate Law Federalism in the Twentieth Century
Get PDFThis Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an artifact of history rather than an instantiation or reflection of a theory of government; (3) competition for charters at the state level resulted in a stable, as opposed to a volatile legal regime; (4) just as economic contractions lead to new regulatory constraints on the conduct of business, so do economic expansions lead to increased regulatory slack; (5) even though regulation on the ground never fully adhered to the subject matter division, the division became increasingly salient over time, taking on positive normative implications; and (6) federal lawmakers came to adhere to a norm of noninterference in state regulation of internal affairs